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Dague v. State (12/05/2003) sp-5761
Dague v. State (12/05/2003) sp-5761
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHELE K. DAGUE, )
) Supreme Court No. S-10385
)
Petitioner, ) Court of Appeals No. A-
7125
)
v. ) Trial Court No. 3AN-S97-3317
Cr.
)
STATE OF ALASKA, )
) O P I N I O N
)
Respondent. ) [No. 5761 - December 5,
2003]
)
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Milton M. Souter, Judge.
Appearances: Kathleen Murphy, Assistant
Public Defender, Barbara K. Brink, Public
Defender, Anchorage, for Petitioner. W.H.
Hawley, Jr., Assistant Attorney General,
Anchorage, Gregg D. Renkes, Attorney General,
Juneau, for Respondent.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Michele Dague admitted responsibility for the death of
a ten-month-old child in her care. The only issue in dispute was
whether Dague had acted "knowingly" - with awareness of the
nature of her act - when she swung or threw the child against a
hard object. This is an element of the extreme indifference
second-degree murder charge against Dague. At trial Dague
attempted to question the State's expert witness regarding three
items of interest: the dynamics of child abuse, the mental state
of abusers generally, and the expert's opinion about Dague's
mental state at the time of the incident. Dague hoped to
demonstrate to the jury this expert's belief that most abusers
act unknowingly. Dague also hoped to elicit testimony that would
add credence to her own expert's parallel testimony, as well as
her expert's specific conclusion that Dague had acted
"reflexively." The trial court initially ruled that the State's
expert did not have the proper expertise and a jury convicted
Dague of second-degree murder. Ultimately, the court of appeals
held that, though the State's expert was qualified to testify
regarding Dague's topics of interest, the exclusion of his
testimony was harmless error. We conclude that the exclusion of
this testimony was not harmless error and reverse and remand for
a new trial.
II. STATEMENT OF FACTS
A. Facts
Michele Dague, age twenty-eight in 1997, operated a
state-licensed daycare facility out of her family home, a duplex
apartment in Eagle River. At approximately 3:12 P.M. on Tuesday
January 28th, Dague dialed 911 from her residence and reported
that a baby in her care was seriously hurt. She informed the 911
operator that the baby was having a hard time breathing. When
the operator inquired as to how the baby was injured, Dague
hesitated, simply stating that the baby had been on the couch.
The operator then asked if the baby had fallen off the couch.
Dague answered in the affirmative.
Paramedics arriving on the scene encountered a tragic
scene: the baby, ten-month-old K.T., was barely breathing and
had increasing swelling on one side of his head. Although the
paramedics were certain that K.T. could not survive his injuries,
they kept him breathing artificially. One of the paramedics
almost immediately concluded that such dramatic injuries could
not have occurred from a simple three-foot fall onto a carpeted
floor.
Emergency room doctors, pediatricians, and child abuse
experts would soon thereafter reach a similar conclusion. K.T.
had suffered severe trauma to his head resulting in a complex
fracture of his skull so serious that portions of his brain had
escaped out of the bone chasm. Despite the unlikelihood that a
fall from the couch could cause such injuries, Dague reiterated
her story to various friends, family, neighbors, medical
personnel, and the police throughout the day.
Eventually, Dague allowed the police to give her a
polygraph about the incident. The morning of the polygraph Dague
indicated that she had not slept well but nevertheless agreed to
come to the station. During a number of post-test interviews
Dague changed her story from K.T. falling off the couch to an
admission that she had accidentally dropped the baby. She also
revealed that she may have accidentally dropped a plastic juice
bottle onto the baby's head, and indicated that there might be a
bruise on the child's ankle "where I tried to grab his leg" as he
fell. Dague agreed to return to her residence for a video re-
enactment of the incident. Sometime during the re-enactment,
Dague indicated a desire to end the re-enactment and speak with
an attorney.
B. Proceedings
1. Trial
Dague was indicted for second-degree extreme
indifference murder and the case proceeded to trial.
a. Dr. Krugman
The State first called Dr. Richard Krugman. The State
had indicated in an earlier pretrial notice of expert witnesses
that "[i]t is anticipated that [Krugman's] testimony will be the
same as what is in his report, as well as his grand jury
testimony." At trial, the State spent much time going over
Krugman's considerable qualifications. With no objection from
the defense, the State offered Krugman "as an expert in the area
of pediatrics and child abuse."
Krugman indicated on direct that, early in the
investigation of K.T.'s death, the State had asked him to
determine whether the incident was an accident or child abuse.
When asked whether Dague's explanations of the events were
consistent with the injury inflicted, Krugman indicated that the
injuries were so severe that neither a fall from a couch onto a
carpeted floor nor a simple drop onto a kitchen floor or other
surface - even followed by a blow to the head from a juice bottle
- could explain the baby's injuries. Rather, he concluded the
injuries could only be explained as "non-accidental."
On cross Krugman acknowledged that part of the process
in determining whether an incident is abuse or an accident
involves "look[ing] at the caretaker or the person who is being
held responsible for that injury." But when the defense then
asked about the "dynamics involved in that person," the State
objected that such questioning was beyond the scope of Krugman's
expertise, was irrelevant profile evidence, and was best handled
by a sociologist or "psychologist pediatrician." The court
initially allowed the questioning as a legitimate exploration of
"the contours and the limits" of Krugman's testimony, and
indicated to Krugman that he should alert the court if any
questioning was beyond his expertise. But when the defense
attempted to explore the factors of how an abuse situation can
develop and the State again objected, the court this time
sustained the objection as beyond Krugman's expertise. Defense
counsel countered that Krugman had testified similarly at grand
jury and in his deposition interview, and had indicated he felt
comfortable answering such questions. The court responded that,
regardless of whether Krugman testified about such factors at
grand jury, the State wasn't offering him as an expert in that
area, that he wasn't the defense expert, and that such issues
were not covered on direct examination and thus the questioning
was outside the scope of direct examination.
After redirect examination, the defense asked to
approach the bench and requested an opportunity to recall Dr.
Krugman at a later time. The following bench conference then
took place:
THE COURT: Well, he's not your witness, and
he - you didn't retain him. The fact that you
asked him questions outside the scope of what
he testified to in the . . . pretrial
preparation doesn't mean you have any right
to call him as your own witness in your
defense case. Ms. Henry?
MS. HENRY [prosecutor]: Well, that's correct.
I mean if they want to contract with him
that's fine, too. . . . My position is going
to be the same how that this is beyond his
expertise. They should be bringing in a
sociologist or a psychologist or something.
. . . .
THE COURT [to defense counsel]: So if you're
going to hold him your agency is going to
have to be the one that pays the tab, that's
all there is to it.
MS. BRENNAN [defense counsel]: Okay, that's
fine.
Because Krugman was scheduled to fly out that very day, and "it's
not fair to hold him beyond today," the court excused the jury in
order to question Krugman immediately as to "whether or not
there's any testimony he can give." The prosecution sent a
police officer to retrieve Krugman. Rather than waste time
waiting for Krugman's return, the court then asked defense
counsel to go ahead and present by offer of proof the information
they expected to elicit from Krugman's testimony.
Defense counsel again reiterated that they were simply
seeking to explore what Krugman had already testified to at grand
jury: how abusive situations arise. Specifically, defense
counsel expected Krugman to again testify that:
any person has the propensity to hurt a
child;
stress can sometimes "set the person off";
the child's behavior might trigger this type of
situation;
sometimes "it's just dumb luck that the planets
could be aligned" and various factors cause a
person to lose control and commit an unintentional
act; and
a quick 911 call might be an indication that such abuse is an
isolated incident. At this point the court inquired of
defense counsel whether they had given notice of Krugman being an
expert with respect to these theories. Defense counsel responded
that they had relied on Krugman's grand jury testimony, and
expected him to testify likewise at trial. Throughout this
exchange, the State's position was that such information was
outside Dr. Krugman's expertise and was best left to a
psychologist, social worker, or psychiatrist. Concluding that
the information was not only outside of Krugman's expertise but
was also outside the scope of the direct examination, the
superior court refused to allow defense counsel to recall
Krugman, not even for additional voir dire questioning.
b. Michele Dague
Michele Dague elected to take the stand in her own
defense. She first testified to the various stressors in her
life around the time of the accident. Dague's husband, a budget
analyst in the Air Force, was transferred to a base in Alaska in
April 1994. Dague immediately became homesick as this was the
first time she had ever been away from family and friends in
Colorado. Dague further testified that, after a pregnancy which
resulted in her gaining considerable weight, her husband spent
more and more time out with his friends, increasing her own sense
of isolation. She considered leaving her husband but "wanted to
make it work." In addition, she testified to increased financial
worries around the time of the crime, a lifelong struggle with
migraine-like headaches, and various problems associated with
starting up and running a daycare center out of her home.
Dague's counsel next turned to the day that K.T. was
injured. Dague testified that she had an especially bad headache
that morning, so bad in fact that it was noticeable to L.T., who
was dropping off her son K.T. Nevertheless, Dague felt well
enough to handle her daycare duties that day, looking after K.T.
along with two other children, including her own daughter.
Dague described the events as they unfolded. Her
headache was getting worse to the point where no sitting,
leaning, or standing position would give her relief. She decided
to take the children outside to the mailbox to get some fresh
air, but they were so restless and rambunctious that this only
made her headache increase, and so she marched them back inside.
She laid K.T. on the couch, removed the other children's coats,
and then picked K.T. up again and carried him into the kitchen.
Her head was still throbbing. She closed her eyes, K.T. screamed
in her ear, and then "I threw him." She testified that she
neither planned nor meant to do such a thing, that it just
happened out of the blue.
Near the end of Dague's direct testimony, her counsel
inquired as to why she had lied to the police about what
happened. She responded, "I live with this every day, and I lied
about it because it couldn't have happened that way. I couldn't
have done that. I wouldn't have done that. . . . I just don't
want to believe that I did it." Dague then answered
affirmatively when asked whether she was "telling the truth
today."
On cross, inconsistencies in Dague's story were brought
to light. The district attorney requested that she demonstrate
how she threw K.T. After re-enacting the throw, Dague was asked
if she knew how K.T. had received a bruise on his ankle. Despite
the fact that she had at one point informed the police that K.T.
might have a bruise on his ankle from where she tried to stop his
fall, she now indicated that she did not know how he might have
received the injury. The prosecutor then asked her if she had
swung rather than thrown the baby, "You grabbed his ankle that
caused the bruise and you swung him into some object, didn't
you?" Dague answered "No." A few moments later, the prosecutor
referenced a transcript of Dague's prior statement to the police
about the bruise on K.T.'s ankle. This time, when asked if she'd
grabbed K.T.'s ankle, Dague responded "I think so," but she again
denied ever swinging K.T.
On redirect examination Dague testified that she was
not really focusing on K.T.'s ankle at the time of the crime, but
that she was not disputing that he had a bruise there.
c. Dr. Aaron Wolf
Dague's expert testimony came from Dr. Aaron S. Wolf,
the last witness to testify. A psychiatrist, Wolf evaluated
Dague in September of 1997 for between an hour and an hour and a
half. He also had reviewed the grand jury testimony and K.T.'s
medical records.
Wolf testified that child abusers come from all walks
of life and that almost anyone has the potential to abuse a
child. Medical professionals look for signals demonstrating an
increased propensity to abuse. One such factor is stress, be it
from one's social isolation, one's medical condition, one's
financial condition, etc. In addition there is usually a
"triggering mechanism[] on the part of the child," which sets off
the chain of events, such as heavy diarrhea, constant fussing or
crying, or in the case of older children, verbal "sassing."
Wolf then described all the factors in Dague's life
that may have led to the crime. He noted that she was new to
Alaska and without a support system. He also pointed to the
recurring headaches that she had complained about to her doctor,
her friends, and most notably to K.T.'s mother on the morning of
the crime.
Defense counsel also asked Wolf whether it would be
difficult for Dague to replicate the event as she was asked to do
in the re-enactment video and again in the courtroom. Wolf
explained that "this would be a very stressful setting to try and
replicate something." He added that to replicate such an
incident might be impossible: "I'm not convinced that she knew
exactly how she did it that time. So she may very well have done
it to the best of her ability here."
Finally, Wolf described Dague's "loss of control" as a
"reflexive" action,
a much more basic reflex of not - not using
our thinking brain, not using our cortex and
. . . as the focus of getting rid of the
pain, not having the pain be there, not
having the noise be there of reflexively not
having that pain right by her ear.
In his expert opinion, then, Dague was not aware that she was
throwing the child.
On cross the State attempted to discredit Dr. Wolf's
testimony focusing on (1) his tendency to testify for the defense
in criminal cases, (2) the relatively short time he spent
interviewing Dague, and (3) the fact that "most of your
experience in the field of psychiatry is treating those with
substance abuse problems or . . . sex offenders," rather than
child abusers. The State also noted that his conclusions were
for the most part based upon what Dague had told him. Finally,
the State questioned Wolf's proclaimed "use" of a certain book in
his library that the State suggested he had "found" only the week
before his trial testimony. The State's other main point of
emphasis during cross was the fact that Wolf's report indicated
that Dague suffered no loss of memory or intellectual
functioning. Wolf verified that these continued to be his
conclusions.
d. Closing arguments
The State emphasized to the jury in its closing that
knowledge was the only real issue in the case. The State argued
that Dague's knowledge was readily apparent because she was able
to recall what had happened and had attempted to cover up what
she had done. The State also appealed to the jury's common
sense, arguing that anyone who could commit such a violent
offense had to know what they were doing.
The defense's closing argument countered that Dague's
loss of control was an unknowing reflex action. The defense
emphasized that Dr. Wolf's testimony regarding uncontrollable
reflex had gone unrebutted, pointing out that the State could
have brought in its own expert to contest Wolf's conclusions but
did not.
The defense also implicitly conceded that Dague's trial
testimony had been inaccurate, at one point describing Dague as
taking K.T. by the ankle and smashing him into a hard object, and
also admitting that Dague had to have used more force than she
had used in court when she demonstrated with a doll.
e. Verdict and sentencing
The jury found Dague guilty of second-degree murder.
During sentencing, the superior court judge remarked, "I've never
seen a case like this and I hope I never see another one." He
also noted that he felt this was a "reflexive sort of act," that
the jury could have gone either way on the "knowing" element, and
that he probably could have only found Dague guilty of
manslaughter. He then sentenced Dague to forty years with twenty
years suspended on condition that she complete a ten-year term of
probation.
2. Dague I - Memorandum Opinion and Judgment, July 5,
2000
Dague appealed the superior court's exclusion of Dr.
Krugman's testimony. In Dague I, the court of appeals determined
that the failure of the court to hold voir dire questioning
preemptively barred the defense from offering Krugman's testimony
as to the extent of his expertise and any opinions he felt
qualified to give, and that this was error.1 The case was
remanded with instructions to the superior court to allow
Krugman's voir dire testimony and make findings to be forwarded
to the court of appeals.2
3. Remand hearing
The remand hearing consisted of two parts: Dr.
Krugman's qualifications to testify as to the dynamics of child
abuse, and what Krugman would have testified to had he been given
the opportunity. The latter is what concerns us here.3 We have
set out in the appendix lengthy excerpts of Krugman's testimony
on remand. The excerpts include all of his testimony that is
relied on by the parties, the court of appeals, and this court.
We have underscored those portions of Krugman's testimony that
appear to us to be particularly relevant to the question of
whether Dague acted knowingly.
As the court of appeals stated in Dague II,
Dr. Krugman was asked to testify concerning
three subjects: a description of the factors
that can trigger an adult to commit child
abuse; general observations concerning the
mental state of child abusers during their
acts of abuse; and a specific diagnosis of
Michele Dague's mental state when she was
committing her act of child abuse.[4]
a. Testimony concerning factors that
can trigger an adult to commit
child abuse
Dr. Krugman explained that the propensity for abuse is
potentially in any person. In many instances, "it's the
combination of behavior in the child and a stressed adult" that
often leads to an "explosion of rage" and subsequent abuse of a
child. Krugman added that social isolation and an inability to
hand the child off to someone else are often contributing
factors.
A helpful tool for Krugman is the concept of "syzygy,"
"an unusual alignment of events that come together to create
something." "[W]e see those three factors [stress + isolation +
triggering event] coming together in the great majority of the
cases that we review that are abuse cases . . . ."
But Krugman was careful to emphasize that there was "no
data" to support the seemingly intuitive conclusion that
increased stress will increase the propensity to abuse. He also
pointed out that most stressed persons never abuse children.
b. Testimony concerning the mental state of
child abusers during their acts of abuse
Dr. Krugman testified that he was not able to "explain"
the loss of control that leads to abuse, he was only able to
observe it. When questioned whether abusers are aware of what
they are doing, he explained:
In my experience, very often they are
not aware of it at the time it's happened.
And, what is characteristic in many cases is
that the caretaker who harms the child,
desperately hopes that what they've done is
not as severe as it is. And, often they
delay in seeking care. . . . So, I think
there's a pressure in abuse, in individuals
who abuse children, to suppress or repress
what's happened. Because I think they feel
very badly as well.
Krugman further explained that, in his estimation, abusers have
no intention of hurting the child and in fact are not even aware
that the child is actually going to be hurt:
I don't think there's any conscious thought
about consequences much less what they're
doing . . . this is just a rage where the
individual is incredibly stressed and
frustrated and just wants whatever behavior
the child was having to stop.
Krugman later offered that "when people lose control in
these types of situations they are not thinking." On cross, the
district attorney revisited this subject:
DISTRICT ATTORNEY: Can you say that in a
situation like this that a person would maybe
not know the consequences of what they were
doing, but know that they were slamming a
baby's head against a hard object to quiet
him, or to get rid of the noise, or for
whatever reason? But they would know what
they were, the physical action that they were
taking.
DR. KRUGMAN: I think that knowledge comes
after the event. I'm not sure I can say it
comes during the event.
Finally, Krugman explained that he based his opinions
on his "clinical experience with our team and in studying and
reading the literature on child abuse . . . ."
c. Testimony concerning Michele Dague's mental
state when she was committing her act of
child abuse
As the court of appeals pointed out in Dague II, Dr.
Krugman was hesitant to testify about what was specifically going
on in Dague's mind.5 He was also hesitant to agree with Dr.
Wolf's conclusions having never seen Wolf's reports or records.6
However, Krugman was willing to answer hypothetical
questions regarding Dague. He testified that he would not be
surprised to hear Dague was having marriage problems, given that
such problems cause stress. He also would not be surprised to
hear that Dague was concerned about finances, given that such
concerns cause stress. He would not be surprised to hear that
Dague was feeling isolated and homesick after her move from
Colorado, given that isolation is a cause of stress. He also
stated that he would not be surprised to hear that Dague was
experiencing an extremely bad headache that day. When asked if
he felt this could contribute to the injuries he had witnessed,
he answered affirmatively, explaining that "pain is a stressful
event."
Defense counsel also asked Dr. Krugman a series of
questions as to whether he agreed with Dr. Wolf's testimony about
Dague's mental state at the time. When asked whether he would
agree that Dague was so focused on the pain of her headache that
she lost sight of what she was doing, he responded, "I wouldn't
disagree with that. And I'd probably tend to agree with it."
When asked if he would agree with "a psychiatrist" who testified
that Dague's actions were a loss of control similar to a
reflexive act, he hesitated to agree with the opinion without
reading the psychiatrist's report, but stated he wouldn't
disagree with it and that it would be "consistent with cases that
I've seen."
After testifying that when people lose control in these
situations they are not thinking, Dr. Krugman was asked whether
in his opinion Dague's actions involved a loss of control
involving an "abuser [who] was not thinking about what they were
doing." He responded, "[a]s I reviewed this case, this seemed to
be a case of loss of control that happened that one time." He
later stated on cross that "[i]n most cases I don't think the
abusive adult knows what's happening at that moment. . . . I
don't know specifically what was going on in Ms. Dague's mind at
that time." When asked whether Dague knew what she was doing at
the time, he responded "I can't say, for sure."
At this point the superior court judge intervened and
inquired whether Krugman could testify as to medical
probabilities. Krugman stated that he could not because "we
can't do those studies." Krugman explained:
In my opinion, in talking with the adults who
have abused children and in working with my
colleagues at the Kemp Center and reviewing
many, many cases, it is my opinion based on
that clinical expertise, and reading what
people have written, that most abusive adults
are not cognizant of what they're doing at
that time. That doesn't permit me to give an
opinion in this specific case because I don't
have the information to be able to do that.
Krugman added that, though it is more probable than not in cases
like this that the abuser was not aware of what was happening,
"you can't apply profile or population type data to individual
cases. It's just hazardous."
d. Findings on remand
The superior court concluded that Dr. Krugman was an
expert "on the psycho-social factors which may affect child
abusers when they commit acts of child abuse." The court then
summarized "with much greater specificity than was provided by
defense counsel in the offer of proof solicited by the court at
trial, what Dr. Krugman's testimony would have been if allowed to
testify as a defense witness at trial." These subjects included
the dynamics of child abuse, a child abuser's mindset, and Dr.
Krugman's inability to render an opinion on Dague's specific
behavior and mental state.
4. Dague II - Memorandum Opinion of October 10, 2001
Having received the superior court's findings, the
court of appeals determined that Dr. Krugman's testimony would
have provided only marginal support for the defense.7 Because
the court of appeals concluded that the State's case against
Dague was strong, it held that the exclusion of Krugman's
testimony was harmless beyond a reasonable doubt.8
We granted Dague's petition for hearing.
III. DISCUSSION
A. Standard of Review
The court of appeals determined that the superior court
erred when it ruled that Dague could not call Dr. Krugman as a
witness, but then concluded that this error "was harmless beyond
a reasonable doubt."9 The court of appeals's use of the harmless-
beyond-a-reasonable-doubt standard implies that the superior
court's error was constitutional error. In such cases,
before constitutional error may be declared
harmless there are two major hurdles to be
crossed. First, the beneficiary of the error
has the burden to show it was harmless.
Second, the court passing upon it "must be
able to declare a belief that it was harmless
beyond a reasonable doubt."[10]
While not directly taking issue with the beyond-a-
reasonable-doubt standard used by the court of appeals, the State
argues that the standard for nonconstitutional error applies to
the exclusion of Dr. Krugman's testimony. According to the
State, the standard is that the "[e]rror is harmless if it would
not appreciably affect the verdict." While this is an acceptable
summary of the nonconstitutional harmless error standard,
appellate courts must apply it in a negative form. We ask
whether we are able to "fairly say that [the error] did not
appreciably affect the jury's verdict."11
A person accused of crime has a right to present
favorable evidence and this right has a constitutional dimension.12
Whether this means that every erroneous evidentiary ruling
precluding defense counsel from asking a particular question is a
constitutional error is unexplored territory for this court.
Since the point is not briefed and because Dague was totally
precluded from calling Dr. Krugman, we would be inclined to
accept the court of appeals's view that the error here was
constitutional in nature. But as we view this case the question
of which standard should be applied makes no difference, for the
excluded testimony is not harmless even under the less demanding
nonconstitutional error standard.
B. Excluding Dr. Krugman's Testimony Was Not
Harmless.
In Colt Industries v. Frank W. Murphy Manufacturer,
Inc., we stated:
[T]he mere fact that another witness has
already testified [on] a certain issue does
not foreclose a litigant's right to introduce
substantiating testimony. Juries may find
one witness more compelling than another, or
they may attribute greater weight to a
finding if more than one expert reaches the
same conclusion.[13]
This statement, if anything, underdescribes the potential impact
of Dr. Krugman's excluded testimony.
1. Dr. Krugman's testimony bolsters Dr.
Wolf's testimony.
Dr. Wolf's testimony went to the central issue of
whether Dague's action was knowing. He testified that her act
was reflexive rather than knowing. He described the conditions
typically leading up to child abuse and found them to be present
in Dague's case.
The State attempted to discredit Dr. Wolf's testimony.
It elicited testimony that he usually testifies for the defense
in criminal cases and that he primarily deals with issues of
substance abuse and sexual abuse rather than child abuse. The
State also questioned Wolf about a book concerning child abuse
that he had mentioned in a pretrial interview. In particular,
the State was interested in the timing of Wolf's discovery of the
book, Abusing Family. Wolf admitted that he looked for and found
the book "this weekend." The State also pointed out that Dr.
Wolf's conclusions were for the most part based on what Dague had
told him and emphasized that Dague had suffered no loss of memory
or intellectual functioning.
Dr. Krugman gave testimony at the remand hearing that
would have supported Dr. Wolf's testimony in important respects.
He described the same stress factors leading to abuse. He
described the typical act of abuse as an explosion of rage, a
description much like Wolf's reflexive action testimony. He
stated repeatedly and in different ways that most abusers do not
act knowingly. This testimony would have given strong credence
to Wolf's testimony that Dague had not acted knowingly.
2. Dr. Krugman's testimony independently
supports Dague's defense.
In addition to giving Dr. Wolf added credibility, Dr.
Krugman's testimony also independently supported Dague's defense
that she had not acted knowingly. Although Krugman at times
stopped short of expressing an opinion particular to Dague, he
stated that he only declined to do so because he had not seen
clinical data from the interview with Dague. Nonetheless he made
it clear that her case seemed to fall within the norm about which
he was testifying: "this case is, to me, is like other cases I
have seen in other situations through my career, so I feel
comfortable that I, that based on what I've read I understand the
situation and the stressors and the factors that went into this
tragic event . . . ." Similarly, he stated that "based on all of
the cases I've seen over twenty years, it is more probable than
not that in cases like this one the individual was not aware of
what was happening . . . ." Krugman also expressed some opinions
particular to Dague's case. He stated that it seemed to be a
case involving a single loss of control. This is an important
point, considering his testimony that during such losses of
control "most abusive adults are not cognizant of what they're
doing at that time." He also stated that he would probably tend
to agree with psychiatric testimony that at the moment of the
abuse Dague had "lost sight of what she was doing." Krugman also
testified that psychiatric testimony that her actions "were a
loss of control, it was more like a reflexive act" would be
consistent with cases that he had seen.
3. Dr. Krugman's testimony undermined the
strength of the State's case.
In concluding that the prosecution had built such a
strong case at the trial that Dr. Krugman's testimony would be
inconsequential, the court of appeals relied on two factors,
Dague's lying and her memory of the assault: "Dague's admitted
perjury, combined with Dr. Wolf's testimony that Dague had a
clear memory of the assault, were strong arguments in favor of
the State's position that Dague had acted knowingly."14 Dague
could have used Dr. Krugman's excluded testimony to help rebut
both of those arguments.
Although a jury might conclude that lying about the
abuse indicates that Dague acted knowingly at the time of the
abuse, a conclusion that lying was irrelevant to the issue would
also be supportable. Dr. Wolf did not appear to see any
necessary connection between lying and knowledge at the time of
the crime. His position was that Dague acted reflexively and
that she did not know what she was doing. Yet he also
acknowledged that Dague lied about the events to the police and
others. He testified that fear, shame, or inability to cope with
the stress of trying to replicate the event were among the
possible explanations for this. None of these explanations
required that Dague knew what she was doing when she killed the
child. Dr. Krugman did not address lying directly, but he did
speak of "a pressure . . . in individuals who abuse children, to
suppress or repress what's happened."
As to whether a subsequent memory of the assault
indicates awareness of its nature at the time of the act, both
Drs. Wolf and Krugman found no necessary connection. Dr. Wolf
acknowledged that Dague had no memory loss from the event, but
nevertheless found this consistent with his conclusion that the
abuse was reflexive and unknowing in character. Similarly, Dr.
Krugman declined to follow the district attorney's suggestion
that a person slamming a baby's head against a hard object would
know what she was doing. Instead he answered, "I think that
knowledge comes after the event. I'm not sure I can say it comes
during the event."
We conclude that admitting Dr. Krugman's testimony
would have put this case in a different light. Both the State's
expert and the defense expert would have been seen to agree on
the causes of this type of child abuse and on the fact that at
the time of the act of abuse the abuser is probably not acting
knowingly. Only by discounting the testimony of both experts
could the jury have concluded beyond a reasonable doubt that the
knowingly element of second-degree murder was present. It
follows that it was not harmless error to exclude Krugman's
testimony.
IV. CONCLUSION
Because we are unable to say that the exclusion of
Krugman's testimony did not appreciably affect the jury's
verdict, the exclusion was not harmless error. For this reason
we REVERSE the decision of the court of appeals and REMAND this
case to the court of appeals with instructions to reverse the
judgment of the superior court and remand the case to the
superior court for a new trial.15
APPENDIX
EB:[defense counsel] Dr. Krugman, at grand jury in this case
you were asked by the district attorney what
can set a person off to commit such an act.
Can you give your answer again?
RK:[Krugman] Well, I suppose I could look at the transcript and
give you an exact answer of what I said there,
but, basically, the, what generally happens in
this cases that an individual caretaker, often
with a prior history of abuse in their own
background, but one who is stressed on - at that
particular moment and taking care of a child that
the child has a behavior that triggers an assault.
And, as I mentioned earlier in this hearing, the
most common behavioral trigger is crying by a
child and the next most common in older infants,
that is, crying by an infant, and the most common
in older children is loss of bowel or bladder
control. So, it's the combination of behavior in
the child and a stressed adult that leads to,
often, an explosion of rage and an assault on the
child that has consequences.
EB: At grand jury you also talked about propensity. That, about
people who had the propensity to abuse a child. Can you talk to
us a little about that.
RK: Yes, I believe, I've said, and I think the literature bears out
that the, it's not abnormal for anyone to feel as if they could
abuse a child. That that propensity for abuse is potentially
within all of us. But it is abnormal to do it and the majority
of adults either don't encounter those situations, or recognize
that feeling of frustration or rage and stop and/or get the child
protected in another way.
EB: Is it fair to say that when someone is getting frustrated and
feeling like they could hurt the child, they do have the
propensity to commit such an act?
Judge: What was the question?
EB: That when a parent or caretaker is beginning to feel frustrated
and beginning to feel upset, that person actually does have the
propensity to actually hurt the child?
RK: I prefer to answer that the other way, that given that the
propensity is potentially within everyone, that the combination
of stress and the behavior of the child and I would add social
isolation and inability to hand the child off to someone else, is
what leads to the abusive events in children. I don't think that
stress, well, I suppose it goes the other way, but I'm just not
aware of any data to support it that the more stress there is,
the more propensity to abuse, I don't know. It seems intuitive,
but I think, I'm not sure I could say that.
EB: OK. But, the propensity to abuse, it's everybody. It's not poor
people, it's not a racial problem?
RK: This is not a problem that is in any segment. It can happen in
any family and often does and in any socio-economic segment and
in every country in the world that it's been looked for.
EB: And you've talked this afternoon, previously that, often when
someone is abused as a child themselves, they have more of a
propensity to abuse a child themselves.
RK: Clearly, the risk for being an abuser is much higher in someone
who was abused as a child than someone who is not. But the
majority of abused children do not grow up to be abusive adults.
So, starting with an adult who was abused as a child, it is more
likely that they will abuse children than someone who was never
abused as a child. But I repeat what I said about just because
one is abused doesn't mean you will be an abuser, two thirds of
abused children don't repeat the cycle.
EB: Is it possible that someone could have the propensity to abuse
even though they've had a totally normal childhood and weren't
abused as a child?
RK: I suppose it's possible and certainly the literature would
suggest that. But I would never say anything is impossible.
EB: And then you did talk about another factor that fits into the
equation is of how a situation like this can arise is stress.
RK: Yes.
EB: O.K. And the stress that can trigger such an event, it can be a
big event in someone's life?
Judge: It can be what?
EB: A big fa. a big event, a big factor in someone's life.
Judge: I don't understand the question.
RK: I think I do.
Judge: Well, I need to understand it to so I can understand the ..
EB: O.K. Someone can have a large stress in their life. And that
could cause an event like this to happen, is that fair to say?
RK: Large stresses like the loss of a job, or financial difficulties
or death, or illness in a family, can exacerbate stress which
will contribute to the probability of abuse occurring. But it
can be a small stress like the washing machine breaking and that
could be the so-called, "last straw" that sets someone off, or it
could be other small items.
Judge: So, in a nutshell, you're saying, underlying stress in a person's
life can increase the risk of committing child abuse.
RK: Of abuse happening, that's correct.
EB: Is it fair to say that stress can be a variable? What's
important to me may not be important to you, so how stress is
measured is really an individual ..
RK: Well, stress has to be looked at in the individual context. It
also has to be looked at in the context of having an individual
with a background that increases the propensity, and having a
child there and having a behavior by the child. So, there are
lots of stressed people who never abuse children. And they're
lots of previously abused adults who never abuse children. Some
of this is just bad luck as it comes together with an individual,
with stress, with the child's behavior and the event just coming
together as a cataclysmic event.
EB: I think the word that you used in our interview was syzygy?
RK: Syzygy. That's correct. S-Y-Z-Y-G-Y, it's an unusual alignment
of events that come together to create something.
EB: From the cases that you have studied, is it common that in
situations where there is stress, that marriage is often, that
the marriage -- the person who's accused of the abuse is having
stress in their marriage? Is that a common situation?
RK: There may be stress in marriages or relationships. Many of the
people who, many children are abused in situations where there
isn't a marriage, but there are boyfriends or other individuals.
So there maybe stress in one's relationships. Yep.
EB: And, if you have heard testimony in this trial that Michelle had
been going through a stressful time in her marriage, would that
have surprised you?
RK: No.
EB: And is it fair to say that money, finances can be a stressful
event in someone's life.
RK: Yes.
EB: And would it surprise you if the testimony in this case was that
Michelle was concerned about finances?
RK: No.
EB: O.K. And also feeling a lack of control over someone's finances
can be a stressful event, would it be surprise you if the
testimony in this case was that Michelle felt stress because of
that lack of control.
RK: No.
EB: O.K., and you've talked about this a bit, that feeling isolated
is a source of stress. Would it surprise you that Michelle had
moved from out of state and was feeling very homesick for her
family in Colorado?
RK: Uh, no.
EB: And is it fair to say that it's more stressful to take care of
more than one child?
RK: Yes.
EB: And, chronic health problems, would you say that those could be
as stressful?
RK: Chronic health problems can be very stressful, yes.
EB: O.K. And if you had heard testimony in this case that Michelle
had an extremely head ache that day, would that surprise you?
RK: It wouldn't surprise me, no.
EB: And do you think that something like that could lead to such an
event as this?
RK: I think something like that could contribute to something like
this.
EB: And if someone is feeling pain, can that lower your threshold so
that you would be more apt to have the propensity to commit such
an act?
RK: I think pain is another stressful event. I think pain increases
one's stress and that can contribute to this type of situation.
EB: And you already talked about the triggering event, the most
common ones are crying and loss of bowel movement?
RK: Loss of bowel or bladder control.
EB: And when you put all these three factors together it can cause
people to lose control?
RK: When these three factors, we -- I think the appropriate way to
say this is that we see those three factors coming together in
the great majority of the cases that we review that are abuse
cases when we have the information.
EB: And do you actually look for those factors when you review the
cases?
RK: We do, and that is part of my lectures to investigators and
others to deliberately ask those questions early in the
investigation of the case.
EB: And, can you explain this loss of control that you're talking
about?
RK: I can't explain it. I think it's - I hope that when I'm done
with my day job as Dean and I go back to work in this area full-
time that in this next decade we can learn a lot more about the
psychiatric and neurologic, particularly the neurologic, and
genetic mechanisms that may take place in these cases, but right
now we can't explain it, we can only observe it and look at it
from a clinical perspective based on the cases we've seen. But,
we don't have a molecular or specific scientific basis for why
this happens.
EB: But you've studied this phenomenon and spoken to many parents and
caretakers who have been in this situation?
RK: I've spoken to lots of people about this, yes. Not just parents
and caretakers, but professionals.
EB: And, when this loss of control happens, do you think that the
person is aware of what they're doing?
RK: In my experience, very often they are not aware of it at the time
it's happened. And, what is characteristic in many cases is that
the caretaker who harms the child, desperately hopes that what
they've done is not as severe as it is. And, often they delay in
seeking care. In contrast to the protective parent whose baby
may have a minor accident and thinks the worst. So, I think
there's a pressure in abuse, in individuals who abuse children,
to suppress or repress what's happened. Because I think they
feel very badly as well. Henry Kemp had a very important phrase
that he taught us that abusive parents love their children very
much but not very well. This isn't spiteful, willful events that
happen. These are explosions of rage that everyone feels very
badly about when it's over.
EB: And, during this explosion, do they mean to harm the child?
RK: There's no intent in most of the cases that I've dealt with.
This is not intentional injury for the most part. We have seen
some cases that are clearly premeditated. We have seen cases
where children have been tortured over time by individuals, but
the majority of physical abuse cases in this country are not
intentional or willful or torture.
EB: And during this explosion, the loss of control, are they aware
that the child is actually going to be ultimately hurt?
RK: I don't believe so.
EB: And do you think that they're able, during this loss of control,
this explosion, that they're able to understand the consequences
of what's going to result as a result of their act?
RK: I think, in that shaking and that explosion of rage or shaking, I
don't think there's any conscious thought about consequences much
less what they're doing, I think that, I think this is a resu -
this is just a rage where the individual is incredibly stressed
and frustrated and just wants whatever behavior the child was
having to stop.
EB: O.K. If a psychiatrist was to testify in this case said that he
believed that Michele was so focused on the pain of her headache
and that she lost sight of what she was doing at the particular
second in time, would you agree with that?
RK: I wouldn't disagree with that. And I'd probably tend to agree
with it.
EB: O.K. And if a psychiatrist in this case testified that Michele's
actions were - were a loss of control, it was more like a
reflexive act. Would you agree with that statement?
RK: Well, again, I think I wouldn't disagree with it, I should be
cautious in saying I'd agree with it because I really don't know
the psychiatrist and I haven't reviewed his reports or records,
but that opinion would be consistent with cases that I've seen.
. . . .
EB: O.K. Would you agree with the statement that if someone is in
crisis and they're losing control, they are not thinking? Would
you agree with that statement?
RK: I think when people lose control in these types of situations
they are not thinking.
EB: And is there anything about, anything about this case that you .
is there anything about this case that what you know about would
make you believe that that was not the case in this case?
RK: Too many negatives, Ms. Brennan, I'm sorry.
EB: O.K. Is there anything that you know about this case that would
make you think otherwise?
Judge: Otherwise than .
RK: Otherwise than ..
EB: That this is a loss of control when the abuser was not thinking
about what they were doing.
RK: I understand your question, now. As I reviewed this case, this
seemed to be a case of loss of control that happened that one
time.
Judge: It happened what?
RK: That one time, that led to the tragic death of [K.T.]
Judge: A one-time loss of control, is that what you're saying?
RK: I saw nothing in the records that I got that this was anything
other than a single event and a single loss of control that led
to his death.
EB: Thank you. Your Honor, I don't have anything further.
. . . .
DA:[prosecutor] O.K. Of course, now, in this case, we're not
talking about an intentional act. Because the
defendant was not charged with intentional murder.
So, basic - so, discussing intention I guess is
really not too relevant. Would you, would it be
fair for, I think you said that in your opinion
when she slammed the baby's head into a hard
object she didn't realize or know that she was
seriously injuring a child?
RK: In most cases I don't think the abusive adult knows what's
happening at that moment.
DA: O.K.
RK: I don't know specifically what was going on in Ms. Dague's mind
at that time.
DA: Exactly. O.K. So, you can't say what was going on in her mind?
RK: I cannot.
DA: Can you say that in a situation like this that a person would
maybe not know the consequences of what they were doing, but know
that they were slamming a baby's head against a hard object to
quiet him, or to get rid of the noise, or for whatever reason?
But they would know what they were, the physical action that they
were taking.
RK: I think that knowledge comes after the event. I'm not sure I can
say it comes during the event.
DA: O.K. In this particular case, can you say, for sure, that
Michele Dague didn't know what she was doing?
RK: I can't say, for sure.
Judge: Do you have a probability, a medical probability statement to
make? More likely than not.
RK: I can't answer that, your Honor, because we - the studies you
would have to do to answer that question would require us to
being interviewing hundreds of abusers who have reached the stage
where they're comfortable, and/or can remember what happened.
So, it's a very, it's as difficult a question to ask - answer as
how much force does it take. We don't know because we can't do
those studies.
Judge: So, you cannot say that it's more likely than not that . what was
the exact question?
DA: All right. That would be the question. You cannot say that it's
more likely than not that Michele Dague did not know what she was
doing?
RK: I cannot say that. I could only speculate based on my experience
in talking with relatively few people. And so, I should, I can't
say.
. . . .
DA: Can you say whether or not this act of taking a baby and slamming
his head against a hard object was a volitional or non-volitional
act?
RK: Are you asking me if this specific act in this case?
DA: Yes.
RK: I cannot answer that.
Judge: To a medical probability?
RK: I can't answer to any medical probability that this particular
act was or was not volitional.
Judge: Is that again a question you might well defer to the psychiatrist
on the treatment team?
RK: Well, I, uh, I, to answer that question in an individual case,
one would need to have the clinical data from an interview with
the abuser and I don't have that information and haven't reviewed
it. Now, I might offer an opinion if I saw that kind of
information. And, knew the individual, or participated with the
team in that evaluation. But, this appeared to me to be a very
narrow question based on this case and I don't have the data to
be able to answer it, that question.
Judge: And what sort of data?
RK: Sorry?
Judge: And what sort of data would that be?
RK: Well, the kind of information that would come from clinical
psychiatric or clinical psychological interviews of the abuser, .
Judge: of the defendant.
RK: of the defendant in this case.
Judge: And you've never seen anything of it?
RK: I have not seen them.
Judge In this case?
RK: No.
DA: Sir, I'd like you to go to page 25 of your interview with the
defense. And, let me get it in context, here. Let's start in
the middle when Ms. Brennan starts out, when you talk about
people losing it, do you see that?
RK: Yes.
DA: O.K. And she says, when you talk about people losing it, is
there a difference between someone losing it by shaking a child
or striking a child or throwing a child and you said, what?
RK: And I said, is there a difference, I don't know what you mean.
DA: And she says, in terms of their loss of control. And what is
your answer?
RK: I said, No, I don't know if, I don't know that there's a
difference. Um, and I don't, I don't think we know why certain
people do what they do when they do it. It would be nice to know
that but we do know that they do it.
DA: All right. Now, in kind of a summary, I, what I'd like to do is
briefly go through what the court of appeals indicated we were
supposed to explore with you. And, the first is situations that
lead to child abuse. Why child abuse occurs and why a person
might abuse a child. Now, I think you've testified to all that,
but can you give us a summary of that?
RK: Well, child abuse occurs, child abuse occurs all over the place.
It's here. And, if we, narrow this, and I assume you want to
narrow it to physical abuse of children.
DA: I'm sorry, yes.
RK: You don't want to go into .
DA: Yes, let's do that.
RK: . sexual abuse or emotional maltreatment. Physical abuse of
children generally occurs, as I've said before, when an adult or
other caretaker, sometimes another older child or adolescent
often who has been abused in their child hood and who is stressed
and isolated encounters a behavior by a child that triggers a
rage and an assault. And the abuse varies from a wide spectrum
from a slap that might leave a bruise, to a fracture to burns to
violent shaking or head injuries, abdominal injuries, with
significant orbidity (ph.) or death. And that's generally how
physical abuse occurs and it occurs in hundreds of thousands of
cases a year in the United States and all over the world.
DA: Do you think, is that basically a complete answer of the question
of why child abuse occurs, and why a person might do it,
generally?
RK: I don't have much time.
DA: Well, no, I mean, but generally, what I'm saying, and I think
you've said, that you've got the stressors of the abuser and then
the trigger from the victim, basically.
RK: You have the stressors in the abuser, someone with the propensity
to abuse, and as I've said, that could be anybody, but it's
higher risk in those who've been abused in their childhood. They
are under stress, they are isolated and then the child has a
behavior that triggers a rage. And they lash out and how they
lash out or what they do and what the injuries are, depends a lot
on the development age of the child as well as on what happens at
that time. And that's, some abuse cases are when children are
scalded in tubs. Others are when children are hit or smashed.
Some are kicked in the belly and get abdominal injuries. Babies
are violently shaken.
Judge: And in many of them, nothing happens. Right?
RK: And then in other cases, either, well, if nothing happens then
it's not abuse. But there are also abusive events that are, that
occur but never come to our attention that we see later when we
see healing fractures or scars or other burns. And, so all of
these kind of depend on the development of the child, the
individual and the situation. And that's why I say you've kind
of got to look at these cases, one at a time.
DA: Right, O.K. Again, in summary, then, would it be fair to say
that generally, child abuse occurs when certain events come
together as you've stated where the abuser is stressed for some
reason, and the child, in this case an infant, triggers something
and normally, a lot of times that's by being fussy, or incessant
crying, is that correct?
RK: Fussy or crying are others, yes.
EB: Dr. Krugman, during your course of expert, of, during your
professional history you've studied a lot of different types of
child abuse cases, is that correct?
RK: That's correct.
EB: O.K. And is it fair to say that when you see these cases,
although each case is different on its own merits, that there's a
lot of common denominators between all the different types of
cases?
RK: There are common denominators and those are the ones I've really
highlighted today with the behaviors, the stress, the isolation
in physical abuse cases.
EB: O.K. And, when you talked about the, the caretaker or the parent
who does the abusing, and when you talked about that the person
doesn't know what they're doing, you are basing that opinion on
all these, on all the past experience that you've had studying
this whole phenomenon, is that correct?
RK: I'm basing that opinion on my clinical experience with our team
and in studying and reading the literature on child abuse, yes.
EB: And do you feel confident about that opinion?
RK: Do I feel confident about that? Sure.
EB: And, so when you see these cases come across your desk, when you
study them and, when you see these cases come across your desk,
it's your opinion how these explosions happen that based on the
different cases that you studied, people don't have knowledge of
what they're doing?
Judge: You lost me on that one, Ms. Brennan.
EB: I know. I'm sorry, I'm getting kind of tired.
O.K. You've testified that people are not aware of what they're doing in
these types of cases. O.K. You're not making that opinion just
in a vacuum?
RK: No.
EB: How are you basing them?
RK: With the exception of the cases that are torture, or are
intentional or deliberate, and I've seen a number of those cases,
but they're not the majority. In my opinion, in talking with the
adults who have abused children and in working with my colleagues
at the Kemp Center and reviewing many, many cases, it is my
opinion based on that clinical expertise, and reading what people
have written, that most abusive adults are not cognizant of what
they're doing at that time. That doesn't permit me to give an
opinion in this specific case because I don't have the
information to be able to do that.
EB: That's all the questions I have.
DA: No, I have no other questions.
Judge: So, basically you're telling us you don't have enough of a
statistical study in order to draw an inference in a case like
this. You have to have specific clinical factors.
RK: To have an opinion about a specific - what a specific
individual's state of mind was, and what the likelihood is of
that person being aware or not aware would require specific
clinical information from that individual. And that's not
available.
Judge: Whereas, on the other hand, if you had a broad statistical study
you could at least make a probability statement based on what you
thus far learned about this case. Is that a fair statement?
Judge: .but you're lacking that.
RK: That is a fair statement, sir. But, and I can say, that based on
all of the cases I've seen over twenty years, it is more probable
than not that in cases like this one the individual was not aware
of what was happening, but as I said before, you can't apply
profile or population type data to individual cases. It's just
hazardous.
Judge: There are far too many other factors that are individual to the
specific situation and the particular persons involved.
RK: That's correct.
Judge: .than just these few factors we've talked about.
RK: That's correct.
Judge: And some of those other factors that are so specific and so
individual can be the determining factor or (inaudible)
RK: They can be. And I've seen cases where a specific, I don't know
whether you want an example of what I'm saying, but, I saw a case
where the way a child smiled at a caretaker reminded that
caretaker of what, and it's actually in the transcript, here, of
the interview, reminded the caretaker of an uncle who had abused
her years earlier. And, she saw that uncle and smashed the child
into the ground. Now, I don't think she was aware at that time
that this baby wasn't her uncle and I think her rage at an uncle
led to the death of that child.
Judge: And that's the sort of thing that defies statistical analysis.
RK: That could not have been done statistically and it's, that, we
found out about that through a psychiatric evaluation of that
person for a sentencing hearing.
Judge: When you had no such information in this case?
RK: I had no . no.
Judge: In this particular case?
RK: In this particular case I had no such ..
Judge: The one in court today?
RK: That's correct.
Judge: Let me ask you a couple of other questions. Maybe you've
answered these already. I tend to think perhaps you have. I
want to frame them carefully. Do you consider yourself qualified
to testify to the psychological, psychiatric factors that caused
or materially contributed to a specific incident of child abuse,
or is that something you need to place substantial reliance on
another member or member of your treatment team?
Do you want me to repeat it?
RK: No, I understand the question.
Judge: I'm talking specifically about causation ...
RK: Uh,
Judge: .contributing materially.
RK: There is enough information in the materials I review in cases
like this one that give me a sense of what I believe went on
clinically. But, I do not have the specific psychologic or
psychiatric data in this case .
Judge: . I understand.
RK: . to be able to testify as to what happened. But, this case is,
to me, is like other cases I have seen in other situations
through my career, so I feel comfortable that I, that based on
what I've read I understand the situation and the stressors and
the factors that went into this tragic event. But, I, not to the
depth that I could explain it in psychiatric or psychologic
terms.
Judge: Not to the depth to where you could render an opinion specific to
this particular case .
RK: Specific to this .
Judge: . on causation
RK: .particular person.
Judge: Yes. In this case in court here today.
RK: In this case. Yes.
Judge: O.K. Given further information, you feel you could do so.
RK: Given further information it is probable that I could.
_______________________________
1Dague v. State (Dague I), Mem. Op. & J. No. 4241, 2, (Alaska
App., July 5, 2000), 2000 WL 881393, *1.
2Id. at 3, 2000 WL 881393 at *1.
3In Daque II, the State conceded that Dr. Krugman demonstrated
sufficient expertise at the remand hearing to testify concerning
the dynamics of child abuse. Dague v. State (Dague II), Mem. Op.
& J. No. 4468, 14 (Alaska App., October 10, 2001), 2001 WL
1205313, *8.
4Id.
5Id. at 16-17, 2001 WL 1205313 at *9-10.
6Id. at 16, 2001 WL 1205313 at *9.
7Id. at 21, 2001 WL 1205313 at *12.
8Id.
9Id.
10Love v. State, 457 P.2d 622, 633 (Alaska 1969) (quoting Chapman
v. California, 386 U.S. 18, 24 (1967)).
11Id. at 632.
12Smithart v. State, 988 P.2d 583, 589 & n.30 (Alaska 1999).
13822 P.2d 925, 932-33 (Alaska 1991).
14Dague II, Mem. Op. & J. No. 4468 at 14, 2001 WL 1205313 at *8.
15In defense of the judgment the State argues a number of
additional points. These grounds have been considered and we
conclude that they were correctly resolved by the court of
appeals.
